The Threat of Judicial Mafia in Indonesia in Discrediting the Principle of the Rule of Law
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International Journal of Criminology and Sociology, 2021, 10, 839-844 839
The Threat of Judicial Mafia in Indonesia in Discrediting the
Principle of the Rule of Law
Hamdan Zoelva*
Former Chairman of the Constitutional Court, Republic of Indonesia and Permanent Lecturer in the Doctoral
Program of Law at As-Syafi'iyah Islamic University, Jl. Raya Jatiwaringin No. 12, Jakarta 13077, Indonesia
Abstract: This paper aims to critically analyze law enforcement against the mafia of the court. The purpose is to improve
the quality of legal institutions and improve the legal structure dimension. The objective is to obtain the quality of court
institution as closely related to the apparatus's quality and integrity and the integrity of the apparatus to be ensured since
the recruitment process also maintains the coaching process. Using the socio-legal approach, the analysis was directed
to the practice of mafia threats to the principle of independence and the court's impartiality while threatening the
existence of the rule of law. The results showed that the mafia of court arises because of the collusion among the
elements of the court's stakeholders, the destruction of the stakeholders that led to the emergence of the various mafia
of court practices in Indonesia. The main findings of this study are that the court, as the last bastion of justice and law
enforcement, is undoubtedly expected to be independent and impartial following the demands of the rule of law. As a
practical implication, the court institution cannot be independent and impartial if there is still a network of crimes that
undermine the court system. Courts that only give justice to those who are strong and have access will cultivate what is
feared by some legal experts that law is only a tool as instrumentalism for those who have access and power. This is
where the threat to the principle of the rule of law lies.
Keywords: Legal threat, the mafia of court, existence, rule of law, Indonesia.
1. INTRODUCTION Since leaving the New Order government (1966-
1998), eradicating corruption, including the mafia of
The independence of the court is one of the court, has not been adequately addressed. The spirit of
essential principles of the rule of law. In Indonesia, this reform since the end of the New Order has indeed
principle is guaranteed in Article 24 of the 1945 strengthened the enthusiasm of all parties to eradicate
Constitution paragraph (1), which states that judicial corruption (Isra et al., 2017; Wisnaeni & Herawati,
power is an independent power to hold a court to 2020). Various regulations and legislative reforms
enforce law and justice (Dewi et al., 2016). The regarding corruption were born but did not bring
Supreme Court carried out the implementation of adequate results (Davidson, 2007). Much of the new
judicial power with four courts under it and the corruption that has been revealed has occurred after
Constitutional Court. It was also exercised by other the reform era in a more complex form so that it can no
bodies stipulated in Article 24 paragraph (2) of the longer be called personal corruption. However, it has
1945 Constitution, for example, the Prosecutor's Office, created a network of structured deviations that form
Corruption Eradication Commission (KPK), advocates, something called structural corruption. At the beginning
and others. The importance of the guarantee of court of the reformation period, at least People's Consultative
independence is there so that the court in deciding a Assembly (MPR) Decree No. XI/1998 was issued on
case filed is impartial, not under pressure, and cannot eradicating corruption, collusion, and nepotism (KKN),
be influenced, but remains for truth and justice. If the Law No. 28 of 1999 concerning the implementation of a
court can be influenced and not become independent, Clean and Free of Corruption, Collusion, and
it becomes a severe threat to the state and the Nepotism, Law No. 28 of 1999 concerning Eradication
establishment of a rule of law (Eddyono, 2017). Factors of Criminal Acts Corruption as amended by Law No. 20
that can do not affect the independence of the court of 2001, Law No. 3 0 of 2002 concerning the
include pressure of power, pressure from the masses, Corruption Eradication Commission, Law No. 46 of
pressure from the political parties, in the form of 2009 concerning the Corruption Court, Presidential
money, blackmail, or other actions, and the low Instruction No. 30 of 1998 concerning Eradication of
integrity and professionalism of law enforcement Corruption, Collusion, and Nepotism, Presidential
(Greenberg & DiVall, 2002; Brandenburg, 2008; Kalb, Instruction No. 5 of 2004 concerning the Acceleration
& Bannon, 2018; Ristyawati & Saraswati, 2018). of Corruption Eradication, etc.
*Address correspondence to this author at the Former Chairman of the Meanwhile, the court was highlighted by the public
Constitutional Court, Republic of Indonesia and Permanent Lecturer in the
Doctoral Program of Law at As-Syafi'iyah Islamic University, Jl. Raya with the disclosure of various practices of legal
Jatiwaringin No. 12, Jakarta 13077, Indonesia;
E-mail: hamdanzoelva@yahoo.com
irregularities in the institution due to the corrupt
E-ISSN: 1929-4409/21 © 2021 Lifescience Global840 International Journal of Criminology and Sociology, 2021, Vol. 10 Hamdan Zoelva
behavior of individual law enforcement officers. in Court institutions is often categorized as systemic
Corruption in the law enforcement process takes place corruption because it has a systemic impact, which
in a complex form, can no longer be called personal means that a court organization cannot carry out its
corruption, but has created a network of structured functions to provide good service and decision-makers
deviations that form structural corruption or also often (Buscaglia, 1999).
called systemic corruption. Systemic corruption is a
form of the mafia of a court or legal mafia, namely the According to Sebastian Pompe (2005), as quoted in
existence of a network of individual law enforcers who a study by the Committee for Investigation and
carry out various irregularities in the law enforcement Eradication of Corruption, Collusion, and Nepotism
process collectively, structured, and with various (KP2KKN), the mafia of the court has four forms. The
motives. This fact has resulted in a decline in public first is personal corruption, namely forms of corruption
trust in the court and further threatens the concept of committed by law enforcement officials
the independence and impartiality of the court. It is personally/individually. The second is institutional
difficult for the court to guarantee the upholding of corruption, namely the process of handling cases
justice through its decisions if the court is filled by law ranging from the police to the courts that are 'incorrect,'
enforcers who can be "bought" and even enter the not by legal facts, or not following law procedures. The
legal mafia network. This brief article discusses how third is structural corruption, which is a form of
the practice of this legal mafia threatens the principle of corruption by law enforcement agencies by using the
independence and impartiality of the court while authority and facilities of the institution; and the fourth
threatening the existence of the rule of law, and its is political corruption, namely the mafia of court related
importance. to political factors or people who have political positions
or public officials (Butt & Lindsey, 2010).
2. LITERATURE REVIEW
In-Law No. 28 of 1999 concerning Eradication of
The term "mafia" initially originated from the special Corruption Crime as amended by Act No. 20 of 2001, it
mention of a hierarchical criminal organization on the describes the definition of criminal acts of corruption,
island of Sicily, Italy, that worked in illegal fields such namely the act of enriching oneself or others against
as gambling, drug trafficking, protection of prostitution, the law which can harm state or economic finances
and others in an organized manner with one of the country or the act of misusing the authority, opportunity
methods of intimidating and bribing law enforcement or means available because of the position which can
official (Antinori, 2012; La Spina, 2014). It is commonly benefit the individual or the others and can harm the
referred to as a secret criminal organization operating country's finances or the country's economy. The
in the United States and Italy and engaged in illegal understanding of the law on the Eradication of
activities such as gambling, dealing, protection, and Corruption has included the definition of corruption,
prostitution. The Encyclopedia Britannica (1957) which contains the following two elements: First, the
defines ‘mafia’ as a hierarchically structured society of misuse of power that exceeds legal fairness by officials
primarily Italian or Sicilian birth or extraction criminals. or state apparatus; and Second, prioritizing personal or
The term applies to the traditional criminal organization client interests above the public interest by officials or
in Sicily and also to a criminal organization in the relevant state apparatus (Lubis & Scott, 1988; Baswir,
United States. The use of this term became 2002). If corruption practices as in the above definition
widespread and became so common that when all are carried out by law enforcement officers in a
forms of organized crime. systemic law enforcement environment with a network.
In that case, it will become a network of Mafia of Court.
The term "mafia of the court" itself began to be
known in the 1970s. This term was made to describe Concretely, the above practices can be witnessed
the law enforcement process that can be bought and alone or even felt by the justice seekers themselves,
turned from the Police, Attorney, Court level to such as individual prosecutors who extort bribery of
Supreme Court. The organized process of law investigators in terms of negotiating the status of
enforcement deviation is then analogous to the term defendants, embezzlement of cases, regulating the
mafia. Therefore, the term mafia of the court is not a contents of court decisions, and illegal levies
legal terminology but rather a terminology is given by administration of legal proceedings (Alkostar, 2002).
the community to patterns of corruption in the court. In The disclosure of various acts of law enforcers
the international world, "court corruption" or corruption accompanied by social problems that followed, such asThe Threat of Judicial Mafia in Indonesia in Discrediting International Journal of Criminology and Sociology, 2021, Vol. 10 841
the arrest of judges, prosecutors, lawyers who corruption and the mafia of the court which is their
accepted bribes, tax mafia, the legal mafia in cases of responsibility, and committing criminal acts of
illegal logging, to members of the community who fell corruption and criminal justice that should have been
poor due to trying to buy victory from individual law eradicated. In theory, the crime of the mafia of the court
enforcers. It shows that the mafia is no longer limited to is including the white-collar crime, namely crimes
personal corruption but has entered institutional committed by people who are experts and understand
corruption and structural corruption, even more at the the law, who also understand the gaps and
level of political corruption because it involves policies shortcomings in existing regulations so that they can
and legislation (Widodo, 2012). If these systematic, escape legal entanglement (Paoli, 2007). Such crimes
conspirative, collective, and structured deviations occur are a type of crime that is complicated and difficult to
in the realm of law enforcement, of course, they are disclose except in extraordinary ways, for example, by
closely related to stakeholder elements in law tapping or providing witness protection to members of a
enforcement institutions. These elements are litigants, whistle-blower network (La Spina, 2014).
judges, prosecutors, lawyers, clerks, police, prison
officials, and justice seekers. Collusion and evil 3. METHOD
cooperation between elements stakeholders cause the
This paper aims to critically analyze law
mafia of the court to arise (Mustofa, 2013). By not
enforcement against the mafia of the court to improve
denying other law enforcers, in this case, the role of
the quality of legal institutions and to improve the legal
lawyers is often very decisive that connects the
elements of the Court stakeholders can be illustrated structure dimension. The method used in this study is
as shown in Figure 1. by using the socio-legal approach with main emphasis
on Friedman's (1975) theory. More specifically, in
analyzing the problems of the mafia of court, the used
theoretical framework of Friedman (1975) proposes
three approaches in understanding the legal system,
namely legal structure, legal substance, and legal
culture.
The mafia of court can be analyzed in all three
dimensions of the legal system. In terms of the
substance of legal norms, Indonesia has quite a lot of
regulations relating to the eradication and prevention of
corruption. Also, in guaranteeing the independence of
the court and protecting the court from the legal mafia,
the substance of the relevant laws and regulations is
quite a lot, including the Criminal Code, Criminal
Procedure Code, Court Power Law, Supreme Court
Figure 1: The flow the work of the mafia of court. Law, Court Law Constitution, Prosecutor's Law,
Advocate Law, Court Commission Law and so forth.
Lawyers who sometimes act as case brokers have However, what must be considered is that the
an essential influence in the formation of organized substance of the law and norms related to the justice
collusion. Mafia of court cases that occur around system and law enforcement do not have gaps which
bribery of individuals such as judges, prosecutors, can be utilized by the Mafia of Court. In other words,
police, and prison officers by justice seekers often the substance of these norms must support the idea of
involve lawyers in them. On the other hand, litigation an integrated court system (Bolifaar et al., 2019). At
parties, including lawyers, are forced to get involved in least in the New Order Period Law No. 3 of 1971 was
this prohibited network and gross deeds because of established on the Eradication of Corruption Crimes,
pressure and requests from other law enforcement which was then refined in the early reforms through
officers, because if not, the case will be defeated. In a Law No. 28 of 1999 and Law No. 20 of 2001 in addition
position like this, a lawyer is in a difficult position, to the MPR Decree No. XI/1998. regarding eradication
unless he is a lawyer with high integrity and of Corruption, Collusion and Nepotism (KKN), Law No.
professionalism. Law enforcers involved in the justice 28 of 1999 concerning the implementation of a Clean
mafia make a double mistake, namely not eradicating and Free of Corruption, Collusion and Nepotism, Law842 International Journal of Criminology and Sociology, 2021, Vol. 10 Hamdan Zoelva
No. 3 0 of 2002 concerning the Corruption Eradication open and modern court system certainly gives space
Commission, Presidential Instruction No. 30 of 1998 for the community to understand and then oversee the
concerning Eradication of Corruption, Collusion, and situation of law enforcement and processes that occur
Nepotism, Presidential Instruction No. 5 of 2004 in the Court institution.
concerning the Acceleration of Corruption Eradication
and so forth. Regarding the structural aspects of law enforcement
agencies, the establishment of special institutions such
4. RESULTS as the KPK cannot immediately solve the problems of
the mafia of the court as a whole, but it requires good
As the influence of the mafia is very complex, this cooperation and consolidation among other law
problem must be viewed from the legal structure. Many enforcement agencies. The cleaning up of Court
things must be addressed from legal institutions, institutions and other legal institutions requires a good
especially in terms of quality, both technical knowledge network of law enforcement officers who are still of high
and personal integrity, and supporting factors for the integrity and reformists. It is difficult for the reformist
professionalism of the officials involved in these apparatus to improve their institutions if they have to
institutions. The problem of the mafia of the court is carry out their roles separately from other officials. The
closely related to the quality and integrity of the court court as the last bastion of justice and law enforcement
apparatus, ranging from investigators, prosecutors, is certainly expected to be independent and impartial
judges, and lawyers. All law enforcement tools have a following the demands of the rule of law. Court
wide opportunity for collusion and be involved in the institutions cannot be independent and impartial if there
mafia of court network in settling cases. In this case, is a network of crimes that damage our justice system.
control and supervision of the principle of the integrity Courts that only provide justice to those who are strong
of law enforcement officers are very important. Since and have access will grow what is feared by Tamahana
the initial screening of law enforcement officials, a (2004) that law is only a tool as instrumentalism for
rigorous and independent selection process should those who have access and power. Here is the threat
have been carried out. Reducing corruption, collusion to the principle of the Indonesian rule of law.
and nepotism practices in the recruitment process can
reduce the development of deviant practices that are From the dimension of legal culture, the condition of
cultured in court institutions and refresh these the community still provides an opportunity for the
institutions with generations with greater integrity. The development of the mafia of court, for example, there is
process of transfer and promotion must also consider still a permissive attitude from the litigant parties as
this. Buscaglia et al. (1995), examining the corruption well as those involved in seeing Court crimes. Some
of court institutions in Latin American countries, noted justice seekers still assume that using corrupt methods
that in carrying out internal reform of court institutions, such as bribery and so on is still a natural thing to get a
the officials hoped for long-term benefits from the victory or escape legal sanctions. Mafia of court in the
reform process such as increasing career certainty, form of a case broker, will not live if it is not supported
guaranteeing independence, opportunities to develop by conditions that allow for it in the community. If those
career and increasing professional prestige. who are involved in a case in court together with words
and deeds declare "no" for bribery and jointly fight
In understanding the corrupt behavior of the law every form of court crime, the mafia will be easier to
enforcement officers, it is not appropriate to increase eradicate. As long as this permissive attitude persists,
apparatus welfare to suppress all forms of irregularities, both intentionally and forcibly, this bad habit will
although welfare also affects, because if the apparatus continue. People who already have the habit of paying
do not have integrity, high benefits will not deter the facilitation payments or bribes in the process the court
occurrence of irregularities. Maintaining the integrity of adds to the difficulty of overcoming the justice mafia
the apparatus is important here, therefore the court Therefore, in court institutions it is important to build a
should be able to create a monitoring system or new culture that can diminish this deviant culture, one
mechanism for its officials to maintain this integrity. way is to build the capacity of law enforcement
Transparency or openness in the bureaucratic system personnel to encourage the emergence of groups of
and the court system is one way that is believed to be pro-reform law enforcement officers. Young judges,
able to narrow the space for the movement of the mafia young prosecutors, and lawyers who have idealism and
of court so that collusion between law enforcers, integrity work together and can become professional
parties, and people seeking justice does not occur. An networks to influence their environment to eradicate theThe Threat of Judicial Mafia in Indonesia in Discrediting International Journal of Criminology and Sociology, 2021, Vol. 10 843
practices of the mafia of court. After the formation of commitment of stakeholders have led to the
this reform group, it is hoped that effective internal emergence of the various mafia of court practices in
checks and balances will be created to build a new Indonesia.
culture that enables the establishment of a clean,
independent, and impartial court. Theoretically, the results highlight the notion that the
mafia of the court was formed because of the legal
To deal with this mafia network, good cooperation is substance factors that were less supportive and still
needed between the leaders of law enforcement contained legal gaps that could be exploited by the
agencies. Transparency and internal oversight mafia elements. These norms related to justice and law
mechanisms in law enforcement agencies are not enforcement must support the creation of an integrated
enough without inter-agency consolidation and court system so that there are no gaps for the mafia
coordination. The leaders of the Supreme Court, the elements to play with the law. The legal culture of
Constitutional Court, the Court Commission, the justice seekers who tend to be permissive to
Prosecutor's Office, the Police, the Corruption irregularities and consider this as a natural thing is also
Eradication Commission, Advocates' organizations, one of the factors that make it difficult to overcome this
and NGOs and legal observers who represent the mafia of court. This culture has provided room for
community must have a common vision to eradicate broad movement for individuals to develop creating
these networks and act according to their respective organized deviations.
roles. The leaders of law enforcement agencies are
expected to be able to open themselves to supervision The results would imply some practical implications,
and investigation to uncover the truth and take firm such as maintaining and improving the integrity and
action against various irregularities that occur within commitment of law enforcement officers and
their institutions. It is important for institutions tasked improvement of the legal culture of the community.
with conducting investigations or investigations such as Furthermore, cooperation between law enforcement
the Attorney General's Office or the Corruption agencies is needed. These consolidation and
Eradication Commission to be given adequate access collaboration are important to establish and maintain a
to conduct a thorough investigation of the leaders of solid monitoring network and support the emergence of
the institution. Institutional leaders who tend to be a generation of law enforcement who have high
closed to various supervision and investigations from integrity. It is impossible for reforms in law enforcement
other institutions will result in the mafia elements agencies to be realized only with the actions of one or
feeling protected and increasingly free to carry out their two officers because corruption and deviations are
actions. The role of NGOs and community carried out in a "congregational", collective and
organizations is very important in carrying out objective conspirative manner and must also be combated
supervision that represents the voice of the general collectively.
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Received on 03-02-2021 Accepted on 02-04-2021 Published on 26-04-2021
https://doi.org/10.6000/1929-4409.2021.10.99
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